Bush Terrace Homeowners Ass'n, Inc. v. Ridgeway, C2-88-1734

• Decision Date: 04 April 1989
• Docket Number: No. C2-88-1734,C2-88-1734
• Citation: 437 N.W.2d 765
• Parties: BUSH TERRACE HOMEOWNERS ASSOCIATION, INC., Appellant, v. Patricia L. RIDGEWAY, Respondent.
• Court: Minnesota Court of Appeals

Page 765

437 N.W.2d 765

BUSH TERRACE HOMEOWNERS ASSOCIATION, INC., Appellant, v. Patricia L. RIDGEWAY, Respondent.

No. C2-88-1734.

Court of Appeals of Minnesota.

April 4, 1989.

Review Denied June 9, 1989.

Syllabus by the Court

1. The trial court did not abuse its discretion in denying injunctive relief where the association failed to prove that condominium owner's installation of balcony screens violated cited rules and caused great and irreparable harm.

2. The trial court did not abuse its discretion in denying the association's motion to vacate the judgment on the grounds of mistake where the association did not plead the declarations as a claim upon which relief could be granted and did not identify additional rules in its brief as issues being submitted for trial.

3. Where condominium's declarations provide for an award of attorney fees to the prevailing party, and where Minn.Stat. Sec. 549.21 (1988) provides an award of attorney fees when litigation claims are frivolous and costly, the trial court did not abuse its discretion in denying an award of attorney fees to the association and in granting an award of attorney fees to the condominium owner.

4. An award of attorney fees on appeal is proper where appellant has been repeatedly advised that its attempted claims are without merit.

John R. Dorgan, Frommelt & Eide, Ltd., Minneapolis, for appellant.

J.D. Haas, Eden Prairie, for respondent.

Heard, considered and decided by LANSING, P.J., and RANDALL and IRVINE, ^* JJ.

OPINION

L.J. IRVINE, Judge.

Appeal from judgment entered in favor of respondent denying appellant's request for permanent injunctive relief. Appellant also seeks review of the trial court's order denying its Minn.R.Civ.P. 60.02 motion to vacate the judgment for mistake. Respondent requests an award of attorney fees on appeal.

FACTS

Respondent Patricia L. Ridgeway owns a condominium at Bush Terrace Condominiums in Minneapolis. In 1987, Ridgeway suffered deteriorating health due to severe allergies. She consulted a physician and was advised that increased air circulation in her condominium unit would alleviate her symptoms. Air circulation in Ridgeway's unit could be increased by opening the bedroom windows, the patio door, or both. Ridgeway opened her bedroom windows and immediately encountered at least 20 wasps in her unit. Ridgeway deduced that the wasps had gained entry into her unit from either the opened bedroom windows or the patio door, both of which she claims are in a state of disrepair. Ridgeway requested that the appellant, Bush Terrace Owner's Association, make repairs to the windows and patio door because getting stung by a wasp poses a risk of death to her. Although a representative of the association inspected Ridgeway's unit, none of the requested repairs was made. Consequently, Ridgeway elected to have custom-made screens installed on her balcony in July 1987 in order to increase air circulation and to keep out the potentially lethal wasps.

On July 7, 1987, the association sent Ridgeway a letter stating that "the installation of screens on your condominium balcony" "is in violation of the Bush Terrace Condominium Rules and Regulations," and specifying Rule Nos. 2, 16 and 20. The letter directed Ridgeway to "immediately remove the screens from your condominium balcony."

When Ridgeway failed to remove the screens by October 1, 1987, the association filed suit for a permanent injunction. Their complaint generally claimed that the association has adopted rules, that the rules prohibit building structures on a balcony, and that Ridgeway violated those rules by installing "custom-made screen panels" "upon her condominium balcony without the prior written consent of [the association]."

The permanent injunction hearing was held on April 14, 1988. The association's motion papers cited rules 2, 16 and 21 in support of injunctive relief. The trial court by order dated April 22, 1988, found that the "cited rules and regulations reveal no language prohibiting screens." As a result, the court denied the association's application for injunctive relief, dismissed its complaint with prejudice, and awarded Ridgeway costs and disbursements. Judgment on the order was entered on May 18, 1988.

On May 16, 1988, the association filed notice of its substitution of counsel. One month later, their new counsel brought a Minn.R.Civ.P. 60.02 motion to vacate the May 18, 1988 judgment on the basis that the trial court erred in not applying the association's declarations to the facts presented. A hearing on the motion was held on July 6, 1988. At the hearing, the court informed the association's counsel no less than three times that its case had been pled, briefed, tried and judgment entered upon the theory that the rules had been violated, not that the declarations had been violated. The court also told counsel that his attempt to change the theory of the case post-judgment "under the guise of mistake" was "completely without merit." Subsequently, the trial court denied the association's motion to vacate by order dated August 11, 1988. In its memorandum, the court noted that the association's attempt to change the pleaded, briefed and tried theory of the case post-trial was not contemplated by Minn.R.Civ.P. 60.02 nor was it allowed by well-established case law.

The association brings this appeal from the May 18, 1988, judgment, but also seeks review of the trial court's grant of attorney fees in its August 11, 1988 order. Ridgeway requests an attorney fee award of $2,500 plus costs and disbursements for having to respond to this appeal.

ISSUES

1. Did the trial court abuse its discretion in denying the association injunctive relief and in awarding judgment in favor of Ridgeway?

2. Did the trial court abuse its discretion in denying the association's Minn.R.Civ.P. 60.02 motion for mistake?

3. Did the trial court abuse its discretion in denying the association an award of attorney fees and in ordering an award of attorney's fees to Ridgeway?

4. Is Ridgeway entitled to attorney fees on appeal?

ANALYSIS

On appeal from a judgment entered denying injunctive relief, the court must determine whether the trial court abused its discretion. Northwest Petroleum Association v. Minnesota Department of Economic Security, 402 N.W.2d 591, 595 (Minn.Ct.App.1987), pet. for rev. denied (Minn. May 18, 1987). Generally, the granting of a permanent injunction lies within the sound discretion of the trial court, and will not be disturbed on appeal unless there has been an abuse of discretion. Id. (citing Cherne Industrial, Inc. v. Grounds & Associates, Inc., 278 N.W.2d 81, 91 (Minn.1979)).

I

The association contends that the trial court abused its discretion in denying it injunctive relief because Ridgeway's installation of screens (1) violates the "mentioned" Rule Nos. 2, 16 and 21, (2) violates additional rules and declarations contained in "the court file," specifically Rule Nos. 9 and 20, and (3) constitutes an illegal partition of the Bush Terrace Condominiums' common areas under Minn.Stat. Sec. 515.06(c) (1988).

"Injunctive relief should be awarded only in clear cases reasonably free from doubt and when necessary to prevent great and irreparable harm." Sullivan v. Eginton, 406 N.W.2d 599, 602 (Minn.Ct.App.1987).

The complaint the association filed in this action claimed in general terms that Ridgeway's installation of balcony screens violated the association's rules. However, before the permanent injunction hearing was held, the association submitted its legal argument to the court identifying the issues to be actually tried. The association specifically argued that Rule Nos. 2, 16 and 21 had been violated and submitted proposed findings in that regard to the court.

Rule Number 2 states, in part:

No garbage cans, trash containers or other unsightly personal property shall be placed on the common area, balconies or patios (Limited Common Areas) nor shall anything be hung or shaken from the windows, or on the balconies, patios or common area. Balconies and patios shall not be used for storage of personal property * * *.

Rule Number 16 provides, in part:

* * * no shades, awnings, window guards or other such appurtenances shall be used on balconies or patios except as shall be approved by the Board of Directors * * *

And finally, Rule Number 21 states as follows:

No additional buildings, tent, shelter, or structure of any kind shall be placed, erected, kept or maintained on the Property without the prior written consent of the Association.

As the associations' rules constitute an agreement between the association and each owner or occupant, this court's standard of review is limited to determining whether the trial court properly interpreted and applied the rules.

The trial court determined that Rule Nos. 2 and 21 clearly had not been violated. Rule No. 2 prohibits anything from being "hung or shaken * * * on the balconies." As such choice of language connotes a temporary condition versus the more permanent condition pleaded here, i.e., the "installation of screens," the trial court's determination in this regard cannot be said to be clearly erroneous. The same is true with regard to the trial court's determination of Rule No. 21. Since rule No. 21 prohibits the building of any structures on the "Property," the scope of this rule clearly does not encompass balconies which by the association's own definition fall within the rules' "Limited Common Area" classification.

With regard to rule No. 16, it appears the trial court initially determined that there was some doubt as to whether it had been violated by Ridgeway's installation of balcony screens because the rule did not specifically prohibit "screens" by name. However, the court ultimately resolved its doubt against the association stating that "[r]ules and regulations which prohibit the owner of a condominium unit from the free enjoyment of a property right should be strictly construed when...